Kerala High Court

Panikkan Veettil Kunhiraman vs State Of Kerala on 28 February, 2025

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Crl.R.P No.11 of 2014

                                                        2025:KER:16761
               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

              THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.

    FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946

                        CRL.REV.PET NO. 11 OF 2014

      CRIME NO.8/1999 OF Alakkode Excise Range Office, Kannur

        AGAINST THE JUDGMENT DATED 21.11.2013 IN Crl.A NO.516 OF

2010 OF ADDITIONAL SESSIONS JUDGE - I, THALASSERY ARISING OUT OF

THE JUDGMENT DATED 18.11.2010 IN SC NO.80 OF 2005 OF ASSISTANT

SESSIONS JUDGE, PAYYANNUR


REVISION PETITIONER/APPELLANT/ACCUSED:

              PANIKKAN VEETTIL KUNHIRAMAN
              AGED 51 YEARS
              S/O.RAMAN, CHERUPARATHATTU MOOLA COLONY, THIMIRI AMSOM
              DESOM, CHITTADI P.O., TALIPARAMBA TALUK, KANNUR
              DISTRICT.


              BY ADVS.
              SRI.V.A.SATHEESH
              SRI.J.ABHILASH
              SRI.V.T.MADHAVANUNNI



RESPONDENT/RESPONDENT/COMPLAINANT:

              STATE OF KERALA
              REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT
              ERNAKULAM THROUGH EXCISE INSPECTOR, ALAKODE EXCISE
              RANGE, KANNUR DISTRICT.

      SMT.SEETHA.S, PUBLIC PROSECUTOR
       THIS    CRIMINAL   REVISION   PETITION   WAS   FINALLY   HEARD   ON
19.02.2025, THE COURT ON 28.02.2025 PASSED THE FOLLOWING:
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Crl.R.P No.11 of 2014

                                                    2025:KER:16761
                             ORDER

This Revision Petition is filed under Sections 397 r/w 401 of

Cr.P.C by the accused in S.C. No.80 of 2005 on the file of the Court

of Assistant Sessions Judge, Payyanur. As per the judgment dated

18.11.2010 passed by the learned Assistant Sessions Judge, the

petitioner was found guilty of the offence under Section 55(g) of

the Kerala Abkari Act and was sentenced to undergo rigorous

imprisonment for a period of two years and to pay fine of

Rs.1,00,000/- and in default to undergo simple imprisonment for

a period of 60 days.

2. The appeal filed by the revision petitioner before the

Court of Session Division, Thalassery was partly allowed as per

the judgment dated 21.11.2013 passed in Crl.A.No.516 of 2010,

confirming the conviction but modifying the sentence by reducing

the substantive sentence as rigorous imprisonment for one year.

The fine portion of the sentence and the default sentence were

maintained by the appellate court. Challenging the legality of the

judgments of the courts below, the petitioner/accused is now

before this Court.

2025:KER:16761

3. The prosecution case is that, on 18.08.1999, at about 1.30

p.m. the accused was found on the back side of his house in

possession of 30 litres of wash. He was arrested by PW2 the

preventive officer of Excise Range Office, Alakkod. After complying

with the formalities, the accused was brought to the Range Office.

He was subsequently produced before the Court. On completion

of the investigation, the final report was laid by PW5, the Excise

Inspector before the jurisdictional Magistrate Court. After taking

cognizance of the offence and complying with the legal formality

of providing copies of relevant prosecution records to the accused

as provided under Section 207 Cr.P.C, the learned Magistrate

committed the case to the Sessions Division under Section 209

Cr.P.C. The case was then made over to the Assistant Sessions

Court for trial and disposal.

4. After the appearance of the accused and framing of

charge, PWs1 to 5 were examined and Exhibits P1 to P5

documents were marked from the side of the prosecution. When

examined under Section 313 Cr.P.C, the accused denied all the

incriminating circumstances brought out against him. No defence

2025:KER:16761 evidence was adduced from the side of the accused. After hearing

both sides the learned Assistant Sessions Judge convicted and

sentenced the accused which was confirmed in the appeal with a

modification in the substantive sentence alone.

5. Heard the learned counsel for the petitioner-accused

and the learned Public Prosecutor.

6. The learned counsel for the petitioner/accused

submitted that though during evidence the detecting officer

deposed that the samples drawn from the contraband article as

well as the can containing residue were sealed and labelled from

the place of occurrence, no such label was seen in the can at the

time of evidence. The reaching of the same contraband article

seized before the court could not be assured due to the absence

of label in the samples and hence the accused is prejudiced. He is

entitled for benefit of doubt. On the other hand, the learned Public

Prosecutor submitted that this point was argued before the

learned Sessions Judge by the accused and it was negated in the

impugned judgment passed by the Sessions Judge and hence no

interference is needed to the conviction and sentence imposed on

2025:KER:16761 the accused.

7. The verification of Ext.P3 Mahazar prepared at the time

of detection of the offence by PW2 would show that it is written in

that document that 300 ml of sample was collected in a 375 ml

bottle and it was sealed and labelled. But no labelling was done in

the can containing the remaining contraband article. There is no

mention in Ext.P3 that the property was sealed or labelled from

the place of occurrence. No such description is there in Ext.P4

property list also.

8. This Court in Unnikrishnan Nair v. State of Kerala

[2020 (4) KLT 376] held thus:

"It is quite probable and natural that the seal and the labels put on the can may be lost or effaced or damaged during its storage in the Court or the excise office for a long period. However, in the instant case, there are circumstances to show that the can containing the liquid which was seized from the possession of the accused was not the can which was produced before the Court. As noticed earlier, there is a specific recital in Ext.P1 mahazar that PW1 sealed the can which was seized from the accused and that he affixed label bearing his signature and also the signature of the witnesses and the accused on it. PW1 gave evidence also to that effect. He also deposed that he produced the material

2025:KER:16761 objects and the documents at the Excise Range Office. PW5 Excise Inspector has given evidence that the articles seized by PW1 and the accused were produced before him and he prepared Ext.P6 crime and occurrence report and he produced the material objects before the Court as per Ext.P7 property list. The description of the can given in Ext.P6 report and Ext.P7 property list does not show that it was sealed or labelled or that there was any seal or any label on it. Therefore, it cannot be found that the very same can which was seized from the possession of the accused was produced before the Court".

9. From the observation in the above judgment, it is clear

that the absence of label in the Can allegedly seized from the

accused is fatal to the prosecution since the production of the very

same contraband reached the Court cannot be assumed in the

absence of such label. Apart from the above, while going through

the materials on record this Court noticed another anomaly in the

investigation of the offence. Neither Ext.P5 property list nor Ext.P6

forwarding note submitted for sending the sample for chemical

analysis contain the specimen seal of the detecting officer.

10. This Court in Shibu Jacob v. Sub Inspector of Police

[2023 (7) KHC 394] held thus:

"Yet another contention raised by the revision petitioners is

2025:KER:16761 that in Ext.P1, no specimen seal is seen affixed. It is also contended that the forwarding note is not seen marked. The purpose of putting the specimen seal impression in the seizure mahazar is to give an opportunity to the court to verify the same and satisfy that the seized substances reach the court without any tampering. The specimen seal is provided in the forwarding note so as to enable the chemical examiner to compare it with the seal on the sample and come to the conclusion that it reached the laboratory without any tampering. In this case, no specimen seal is seen affixed in the seizure mahazar and the forwarding note itself is not produced and marked. This court in Vijayan v State of Kerala, (2021 (5) KLT 321), has enumerated the steps to be followed by the officer collecting the sample, the Thondy Clerk who is authorized to receive the thondy and the measures to be ensured by the chemical examiner and held that the specimen seal shall be affixed on the mahazar, sample bottle, bottle containing the remaining part of the contraband and the forwarding note and further held that while collecting sample the officer shall describe the nature of the specimen seal in the mahazar. In the present case, the forwarding note by which the sample of the contraband was sent for chemical analysis is also not produced and marked. In Nadarajan v. State of Kerala, [2020 (3) KLT OnLine 1030], it is held that when the specimen seal is not affixed on the seizure mahazar and in the forwarding note (in the present case no forwarding note is produced and marked), there is no assurance that the very same sample

2025:KER:16761 which was allegedly drawn at the spot of occurrence was produced before the court and sent for analysis as per the forwarding note and it has reached the laboratory in a tamper proof condition and tested there. A similar view was taken by this court in Gopalan v. State of Kerala, [2016 (3) KLT SN 16], Prakasan v. State of Kerala [2016 (1) KLT SN 96 (C.No.96)], Joseph v State of Kerala [2009 (4) KHC 537]. Ajayakumar v. State of Kerala [2021 KHC 3872], Gireesh @ Manoj v. State of Kerala [2019 KHC 655], Faijas v. State of Kerala (2020 KHC 5259) and Ramachandran v. State of Kerala, (2021 (1) KLT 793]. This court in Moothedath Sivadasan v. State of Kerala, [2021 (1) KLT 744] has held that since no specimen impression of seal is seen affixed in the seizure mahazar it is very difficult to hold that the sample of the contraband allegedly seized from the accused has in fact reached the Chemical Examiner for analysis. This court in Sasidharan v. State of Kerala, [2007 (1) KLT 720] has considered and emphasized the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hand of the chemical examiner in a tamper-proof condition.

Relying on the judgment of the Apex Court in State of Rajasthan v. Daulat Ram, [AIR 1980 SC 1314], this court in Sasidharn's case supra held that when the sample changed several hands before reaching the chemical examiner, the prosecution has to necessarily examine the various officials who handled the sample to prove that while in their custody, the seal of the sample has not been tampered with. The

2025:KER:16761 Apex Court in Vijay Pandey v. State of U.P., (AIR 2019 SC 3569] has held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be correlated. A similar view was taken by this court in Udayan v. State of Kerala, [2023 (1) KLT 371]. In view of the lacuna pointed out above, it is to be held that the prosecution could not establish the link evidence connecting the accused with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioners are entitled to the benefit of doubt."

11. In Girish v. State of Kerala [2023 (7) KHC 435] a

learned Single Judge of this Court considered the effect of absence

of impression of specimen seal in the property list and held thus:

"The absence of impression of specimen seal in the mahazar and property list and non disclosure of the name of the Police Constable in the forwarding note and the delay in producing the sample before the Chemical Examiner's Laboratory are circumstances to doubt the identity of the sample drawn and the sample sent for chemical analysis. It cannot be disputed that the prosecution is duty bound to prove that there was tamper proof despatch of the sample, to show that the sample taken from the contraband seized from the accused was the sample which reached the hands of the Chemical Examiner. Since the prosecution failed to

2025:KER:16761 prove the same, it cannot be held that the link evidence was established."

12. Viewed in the light of the principles laid down in the

above-referred judgments, it is clear the absence of specimen seal

impression in Ext.P5 property list and in Ext.P6 forwarding note is

fatal to the prosecution.

13. It is trite that when the judgment of the court below is

suffering from material illegality, this Court by exercising

revisional jurisdiction can correct the same.

14. While considering the pleadings and materials on

record and submissions made at the Bar, it is clear that the trial

court as well as the appellate court failed to properly appreciate

these flows in the investigation which are fatal to the prosecution.

The petitioner/accused is therefore entitled for the benefit of